Seek 'independent specialist advice': concern about lending from SMSFs after private Newcastle deals revealed

A fixed-term loan from their self-managed super fund (SMSF) offering a 10 per cent return.

The interest was much better than what the bank was offering to keep the money on term deposit and the deal was made even more attractive by the fact that the person borrowing the funds was their long-term trusted accountant Paul Siderovski, the managing director of Newcastle's SiDCOR Chartered Accountants.

At the time, the Temelkovskis were investigating buying a small business and Mr Siderovski told them to "hold off" as he was about to franchise Yogurtland, the United States-based frozen yoghurt chain he brought to Australia in 2013.

"Hey Tony, Hope your (sic) well mate. I have an opportunity for you that will be good for your SMSF," Mr Siderovski wrote to Mr Temelkovski on April 22, 2014.

"Effectively it is a 10% return with interest paid weekly. It is a loan that is secured by myself. There will be loan agreements in place etc. Instead of borrowing from the bank to build more YL [Yogurtland] stores which I am then locked into 5 year terms; I will borrow external to the bank and repay the loan in full within 12 months."

Keen to be part of the expansion of Yogurtland, the Temelkovskis agreed. 

Initially the Merewether couple was wrongly supplied paperwork stating Mr Siderovski planned to borrow $1 million from their SMSF.

But the amount on the loan documents was amended to show Mr Siderovski and his wife, Valentina, borrowed $150,000 from the Temelkovski Family Superannuation Fund on May 29, 2014, and Mr Siderovski borrowed a further $80,000 on July 31, 2014.

It was a significant amount of the fund.

Loan documents reveal there was no security and Mr Siderovski, "at his sole discretion", could extend the term of the loan as long as he advised the Temelkovskis in writing.

It's an arrangement that has raised concern within the self-managed superannuation funds peak representative body, the SMSF Association.

The association's head of education and technical, Peter Hogan, told the Newcastle Herald while these types of transactions were believed to be widespread and used to fund everything from businesses to property development, and were allowed under the rules, there were several things people needed to consider before entering into loan agreements as trustees of their SMSFs.

"This is not uncommon, clearly these sorts of arrangements take place," Mr Hogan said. 

"But we would always recommend people get a third party independent view of the deal. This is a substantial investment of funds and people should always get a couple of independent opinions. Large investments heighten the risk for the fund and people's retirement savings."

Mr Hogan also cautioned against choosing one investment platform. 

"Don't expose your fund to one single investment," he said "You need an investment strategy that takes into account risk and return and it should be diversified."

SMSFs are big business. The $755 billion sector has inspired accountants across Australia to promote them as vehicles to accumulate and transfer wealth and minimise tax. 

The SMSF Association recommends people seek an independent adviser with "specialist knowledge" around SMSFs before agreeing to set one up or make any investments.

Mr Hogan said SMSFs are "not for everyone"  and the association strongly supports the Productivity Commission's call for specialist training for financial advisers.

A commission report issued in January made a series of recommendations for changes to the superannuation sector, which has $2.7 trillion in assets under management, including that professional standards for SMSF financial advisers should mandate "specialist training".

According to the government's peak think tank, improving advice standards tailored to people's circumstances was key, because poor quality advice pervaded the super system. 

"A significant body of evidence has emerged through the royal commission and work by ASIC that conflicted and unsuitable advice pervades the super system. This must be fixed," the report said.

According to the commission, SMSFs with less than $500,000 perform "significantly worse" when compared with retail and industry funds.

Xavier O'Halloran, head of advocacy at the Superannuation Consumers' Centre, said "the evidence in the report is that far too many people signed up to SMSFs and a lot of those funds are not competitive on the open market".

Every year about 2000 SMSFs are set up, down from a peak of about 4000 in 2017.

Mr Siderovski told the Herald he was not a qualified financial adviser and said he does not give clients financial advice.

Asked about borrowing money from clients' SMSFs, Mr Siderovski said he was unable to discuss clients' financial matters due to confidentiality.

According to the Tax Practitioner Board's Code of Professional Conduct, tax agents must have in place adequate arrangements to manage conflicts of interest to ensure they remain independent.

Asked if he believed borrowing from clients' SMSFs was a conflict of interest, Mr Siderovski said SiDCOR adopts the board's Code of Professional Conduct in dealing with its clients.

"The way SIDCOR conducts its business is commercial in confidence," he said. "It is subject to client privilege."  

According to documents obtained by the Herald, just days before the Temelkovskis signed on as the first Yogurtland franchisee they had a meeting in October 2014 with Mr Siderovski to go over the details of the purchase of their Erina store.

As a follow-up, Mr Siderovski emailed a spreadsheet to Mr Temelkovski and SiDCOR's chief executive, Scott Douglas, showing a list of "action items", detailing who was accountable for them and their status.

Among them was "PS [PAUL Siderovski] to advise Tony [Temelkovski] when any funds required", "Funds will be super $230k, 200k equipment finance and 200k from LOC [line of credit]". 

The person listed as having accountability for the actions was Mr Siderovski.

In a series of emails in November 2014, as the Yogurtland Marketown franchisees Andrew and Samantha Worth were sorting out how to fund the purchase of their store, Mr Worth asked Mr Siderovski about the couple's finance options.

"The balance up to $620k will come from super," Mr Siderovski wrote. "That is between us. Love ya." 

On December 31, 2014, and in mid-January 2015 bank records show Mr Worth made three electronic transfers to Mr Siderovski totally $190,000 under the description "Worth super".

Mr Siderovski told the Herald "no money from any SMSFs" was used to purchase a Yogurtland franchise.

According to a spokeswoman from the Australian Taxation Office, SMSFs can only be used to provide retirement benefits for members.

An investigation by the Newcastle Herald revealed that Yogurtland has experienced a mutiny from all franchisees after stores failed to perform as expected. 

The Temelkovskis and Worths are two of four couples from the Hunter and Central Coast who signed on as franchisees and opted out of their stores amid disputes over disappointing turnover and profits.

In August 2016, as the relationship between Yogurtland Australia and the franchisees soured, Mr Temelkovski emailed Mr Siderovski trying to negotiate an exit strategy.

"Super fund loan. I will repay this loan to the super fund over 5 years at a return of 10% pa," Mr Siderovski wrote.

"You can have this as interest only for 5 years or longer whatever suits. Proper loan agreement will be in place. If you want this paid out in full now then I can. You can compound the interest as well."

But the money was not repaid in full until six months later.

The situation continued to deteriorate until three unhappy franchisees sought legal advice - including the Temelkovskis and Worths - and lodged official disputes with Yogurtland Franchising's sole director, Mr Siderovski, in February 2017. 

Days after the dispute notices were lodged, Mr Siderovski deposited the outstanding amount of the Temelkovskis' and the Worths' SMSFs into their bank accounts.

Under the terms of the franchise agreements, the dispute notices triggered confidential mediation sessions that were held in mid-2017, overseen by Derek Minus, the government-appointed Franchising Mediation Adviser.

The franchisees paid $103,000 in legal fees leading up to and during the mediation.

Eventually, the Erina and Marketown stores were purchased by Yogurtland Australia under a confidential settlement officially gagging the franchisees.